Update: OSHA Emergency Temporary Standard on COVID-19 Vaccine

The OSHA Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to require employees to either obtain a COVID-19 vaccination or undergo weekly COVID-19 testing has been placed on OSHA’s website, and is scheduled for publication in the Federal Register on November 5, 2021 (which will be the ETS’ effective date). This Client Alert is intended to serve as an initial primer about the key points of the ETS.

The determination of whether the employer has at least 100 employees is initially made as of November 5, 2021. If an employer has fewer than 100 employees on that date, the ETS would not apply to that employer – but if that employer subsequently hits the 100-employee threshold for coverage, the employer would then be required to comply with the ETS. The determination of whether the employer has 100 employees is made on an enterprise level – there is not a separate calculation for individual facilities. Part-time employees should be included in the calculation.
The ETS requires an employer to take the following steps:

• The employer must establish, implement and enforce a written mandatory vaccination policy – UNLESS the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 in accordance with paragraph (g) of this section and wear a face covering as required by the ETS. Employers must comply with this section of the ETS by December 5, 2021.

• The employer must determine the vaccination status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status. Acceptable proof of vaccination status includes:
  • Record of immunization from a health care provider or pharmacy;
  • A copy of the COVID-19 Vaccination Record Card;
  • A copy of medical records documenting vaccination;
  • A copy of immunization records from a public health, state or tribal immunization information system; or
  • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

In some cases where an employee is unable to provide proof of vaccination, an employer may be able to accept a sworn statement from the employee attesting to their vaccination status. If an employee does not provide proof of vaccination, the employer must treat the employee as being unvaccinated. Proof of vaccination must be maintained as a confidential medical record. Employers must comply with this section of the ETS by December 5, 2021.

Employers must provide paid leave for vaccination and recovery from potential vaccine side effects. Employers must provide up to 4 hours of paid time for vaccination (including travel), and “reasonable time and paid sick leave” to recover from side effects experienced following any primary vaccination dose. The ETS does not define “reasonable time and paid sick leave”, but FAQs that accompany the regulations indicate that that OSHA “presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.” Employers must comply with this section of the ETS by December 5, 2021.

• Employers must ensure that any employee who is not fully vaccinated undergoes regular COVID-19 testing. The specific testing requirements are as follows:
  • An employee who reports at least once every 7 days to a work location where other individuals are present must be tested for COVID-19 at least once every 7 days and provide the most recent results to the employer at least once every 7 days.
  • An employee who does not report to a work location where other individuals are present during a period of 7 or more days must be tested for COVID-19 within 7 days prior to returning to the workplace, and must provide documentation of that test to the employer.
  • If an employee receives a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer may not require the employee to undergo testing during the 90 day period following their test or diagnosis.

If an employee does not provide proof of testing as required, the employer cannot allow the employee into the workplace until the required proof of testing is presented. Testing records must be maintained as a confidential medical record. Employers must comply with this section of the ETS by January 4, 2022.

Although the ETS states that employers are not required to pay for the costs of required COVID-19 testing, employers may be required to bear the cost of testing under state law or other legal provisions. Employers should consult with employment counsel prior to determining who will bear the cost of testing.

• Employers must require employees to promptly notify the employer of positive COVID-19 test results, and ensure employees who test positive are removed from the workplace in compliance with CDC guidelines. Employers must comply with this section of the ETS by December 5, 2021.

• The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. There are exceptions to this rule in the following circumstances:
  • When an employee is alone in a room with floor to ceiling walls and a closed door;
  • For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
  • When the employee is wearing a respirator or facemask;
  • Where the employer can show that use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this requirement (for example, where wearing a face covering would cause a greater safety hazard).

The employer must ensure that any face covering worn covers the nose and mouth, and ensure that coverings are replaced when they become wet, soiled or damaged. Employers must comply with this section of the ETS by December 5, 2021.

• Employers must provide each employee, in a language and at a literacy level the employee understands, information about:
  • The requirements of the ETS;
  • The CDC publication “Key Things to Know About COVID-19 Vaccines”, available online at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; and
  • Information about federal regulations prohibiting retaliation for reporting workplace injuries or illnesses and penalties for knowingly supplying false statements or documentation.

Employers must comply with this section of the ETS by December 5, 2021.

• Employers must report COVID-19 fatalities and hospitalizations to OSHA in accordance with OSHA reporting requirements. OSHA has prepared a fact sheet to assist with these requirements, available online at: https://www.osha.gov/sites/default/files/publications/OSHA4129.pdf.

• By the end of the next business day following a request, the employer must make available for examination and copying the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and their designated representatives. Employers must comply with this section of the ETS by December 5, 2021.

Additional information about the ETS is available on OSHA’s website about the following link: https://www.osha.gov/coronavirus/ets2. Other federal agencies are publishing additional COVID-19-related requirements today and tomorrow; additional guidance on those measures will be forthcoming.

We expect that legal challenges to the ETS will be filed quickly by multiple governmental and private organizations. It is possible that these challenges may delay or prevent the implementation of at least some aspects of the ETS.

As additional information about the ETS becomes available, our office will provide you with updated information and guidance. If you have any questions about OSHA’s new Rule or other workplace safety issues, please call our office. Thank you.

This Client Alert provides a general overview of new legal developments. It is not intended to provide legal advice. If you have questions or would like more information about how these developments may affect your business, please contact us at (570) 341-8800.